Jocelyn Benson

Imagine this: It’s the final two minutes of a football game, and the score is 42-3. The losing team’s coach complains that the rules for scoring touchdowns are unclear. The referee agrees with the coach, invalidates the other team’s touchdowns and cancels the game.

Sound strange?  It should. It is not fair to change the rules in the middle of the game. But that’s exactly what happened last week when, thanks to legal games and gimmicks from State Rep. Paul Scott (R-Grand Blanc) and his team of attorneys, a state court cancelled his recall election and eliminated the opportunity for voters to make their voice heard.

This decision invalided a long and concerted effort by a group of citizens who worked hard to follow the law.

Unhappy with several votes from Scott to cut funding for their children’s education, 12,000 of his constituents signed a petition this past summer that would allow citizens in his district to vote on whether to recall him in the next election. The voters followed all of the rules, and Michigan Director of Elections Chris Thomas rightly accepted their signatures as valid. The recall question was to be put before the voters this November.

Scott challenged Thomas’s decision to accept the signatures and order the recall, arguing that the signatures were invalid because they were gathered before he had exhausted all of his appeals about the language of the petition.

But that argument had no basis in Michigan law, which clearly states that signatures can be collected after the county board of elections approves the language of the petition. As such, those collecting signatures had no reason to think they had to wait for Scott to finish his appeals of that approval before circulating their petitions.

Nevertheless, if Scott has his way – and it appears he might – voters who followed the rules and successfully organized an effort to recall their state legislator will be out of luck.

Ingham County Circuit Judge Clinton Canady seemed uncomfortable with the decision to grant an injunction against the election, and suggested the appellate court left him with little choice. He offered little explanation beyond that.

And it gets even more bizarre. Imagine if your attorney, charged with defending you in litigation, filed a brief with the court in support of your opponent.

That’s exactly what Michigan Attorney General Bill Schuette did in this case. Schuette – the “people’s attorney” – is responsible for defending the voters and the Secretary of State’s office, under which Thomas made the decision to accept the signatures. But while a member of his staff was busy defending the State, Schuette also filed a brief with the court in support of Scott, endorsing his request to cancel the recall election.

How can effective legal representation involve arguing on behalf of the opposing side’s interests?  Schuette’s actions in support of Scott’s case undermine his ability to defend his client – the people of Michigan – and violate the basic tenets of integrity that lawyers are expected to uphold.

At the core of these shenanigans, however, is the reality that it is extremely rare for courts to get involved in the business of cancelling or overturning elections – especially if it involves trampling on voters’ rights.

Out of respect for the sanctity of our democracy, and maintaining the impartiality of our judiciary, judges typically align with the views that former U.S. Supreme Court Justice John Paul Stevens, as expressed in his dissent in Bush v. Gore. Lamenting the Supreme Court’s intervention in that case, Stevens wrote that the nation’s “confidence in the judge as an impartial guardian of the rule of law” is the “true backbone” of our judiciary. And that confidence is wounded each time the court reaches into and alters the rules governing our democratic process.

It’s that public confidence, that sense of judicial impartiality, that is so severely damaged in this case.

And the potential for that damage was not lost on the Judge Canady, who claimed he was “just the messenger” for the higher court’s interpretation of the law.

Fairness is a core value of our democratic process. And it is unfair to change the rules in the middle of that process, especially when changing those rules silence the voices of thousands of voters in our state. For the sake of public trust in our judicial system and our electoral process, the Michigan Supreme Court should overturn this decision in the event an appeal reaches its chambers.

Jocelyn Benson is the CEO of the Michigan Center for Election Law and an Associate Professor of Law at Wayne State University Law School.  

© 2011 North Star Writers Group

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